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Romero v. Pueblo of Sandia/Sandia Casino9/29/2003
n multiple parties are involved, judgment may be entered adjudicating all issues as to one or more, but fewer than all parties. Such judgment shall be a final one unless the court . . . expressly provides otherwise."). Because the dismissal conferred an appeal as of right, Plaintiffs should have filed a notice of appeal with the trial court within thirty days of the entry of the order of dismissal. See Rule 12-201(A)(2) NMRA 2003; Rule 12-202(A).
A timely notice of appeal is a "mandatory precondition to the exercise of jurisdiction." Trujillo v. Serrano, 117 N.M. 273, 277, 871 P.2d 369, 373 (1994) (emphasis omitted). Therefore, we do not ordinarily entertain an appeal in the absence of a timely notice. See Govich v. N. Am. Sys., Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991). However, "unusual circumstances" create an exception that "warrant permitting an untimely appeal." Trujillo, 117 N.M. at 278, 871 P.2d at 374. Judicial error is one such unusual circumstance. Id.; see also Jaritas Live Stock Co. v. Spriggs, 42 N.M. 14, 16, 74 P.2d 722, 723 (1937) (per curiam) (permitting appeal where the appellant promptly mailed the motion and prepared order to the trial court, but the judge filed the order one day after the expiration of the period).
In this case, we believe that judicial miscommunication led Plaintiffs to believe they had perfected their appeal when they had not. At the calendaring stage of this appeal, the absence of a timely notice of appeal filed in the trial court should have triggered this Court's dismissal of the appeal. See Govich, 112 N.M. at 230, 814 P.2d at 98 (explaining that time and place of filing notice of appeal is mandatory precondition to appellate jurisdiction). Instead, this Court, within the time for filing a notice of appeal and well within the time that would be allowed with an extension, informed the litigants that it would consider Plaintiffs' application for interlocutory appeal to serve as a notice of appeal and docketing statement. Thus, we clearly expressed that we would entertain Plaintiffs' appeal. We will not now decline to hear the appeal because of a technical defect that we helped create. See Trujillo, 117 N.M. at 278, 871 P.2d at 374 ("To deny a party the constitutional right to an appeal because of a mistake on the part of the court runs against the most basic precepts of justice and fairness.").
Joinder of Insurer Where Liability Insurance is Mandated Under the Compact
In general, an injured party cannot join the insurer of a negligent defendant absent "a contractual provision or statute or ordinance" providing otherwise. Raskob, 1998-NMSC-045, 3. This legal principle results from the lack of privity between the injured party and the insurer of the allegedly negligent party. Id. An exception to this rule exists, and joinder of the defendant's insurer is permitted, where "1) the coverage was mandated by law, 2) it benefits the public, and 3) no language of the law expresses an intent to deny joinder." Id. Plaintiffs' appeal centers on their contention that this exception applies to their case and that they were therefore entitled to join Cigna. Cigna counters that the exception does not apply when the law mandating insurance is the Compact and that the trial court correctly dismissed Cigna from the lawsuit. Because the outcome of this dispute turns entirely on application of the law, we review the trial court's determination de novo. See Sitterly v. Matthews, 2000-NMCA-037, 22, 129 N.M. 134, 2 P.3d 871 (discussing standard of review).
Considering each of the three factors in turn, we first determine whether the liability insurance at issue is mandated by law. See Martinez
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